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of any material held by the prosecution which weakened its case or strengthened
that of the defendant.501
The timing of disclosure The duty to give initial disclosure arises with a period
measured from ā€˜the relevant dayā€™. For cases dealt with in the magistratesā€™ court,
the relevant day is the day the defendant pleads not guilty and for cases dealt
with at the Crown Court, it is the day the proceedings are sent to the Crown
Court.502 Although a time limit was envisaged by the 1996 Act, none is ļ¬xed for

496 497 498
Fraud Review, p. 214, para. 9.49. Section 7(2). CJA 2003, Sch. 36, para. 21.
499
CJA 2003, s. 37 inserting a new s. 7A into the CPIA.
500
[2004] UKHL 3, [2004] 2 AC 134, [2004] 1 All ER 1269. A single judgment was delivered by
Lord Bingham.
501
The House of Lords laid down a checklist for the court to consider in PII applications: (1)
what in detail is the material sought? (2) is the material such as may weaken the prosecution
case or strengthen that of the defence? If no, disclosure should not be ordered. If yes, full
disclosure should be ordered unless (3), (4) or (5) applied; (3) would full disclosure create a
real risk of serious prejudice to an important public interest? If no, full disclosure should be
ordered; (4) if the answer to (2) and (3) is yes, can the defendantā€™s interests be protected
without disclosure or by some other means such as partial disclosure? (5) the order should be
the minimum derogation from the golden rule of full disclosure; (6) if limited disclosure
under (4) or (5) would make the trial unfair, fuller disclosure must be ordered even if that
would mean that the prosecution drops the case; and (7) the matter must be kept under
review throughout the case. For commentary see C. Taylor, ā€˜The Courts and Applications for
Public Interest Immunity: R v. H and Cā€™, 8 Evidence and Proof, 2004, pp. 179ā€“85; M.
Redmayne, ā€˜Disclosure and its Discontentsā€™, Criminal Law Review, 2004, p. 441 at 454ā€“9.
502
CPIA 1996, ss. 3(8), 12 and 13(1).
297 Information supplied to the opponent (ā€˜disclosureā€™)


prosecution disclosure other than ā€˜as soon as practicableā€™, but in R v. DPP, ex p
Lee503 the Divisional Court laid down the important principle that the prosecu-
tor must always be alive to the need to make advance disclosure of material of
which he is aware (either from his knowledge or because his attention has been
drawn to it by the defence) and which he as a responsible prosecutor recognises
should be disclosed at an early stage.
Under the disclosure rules the defence do not have the advantage of initial
prosecution disclosure before deciding whether to plead guilty in the magis-
tratesā€™ court.
Failure to comply If the accused thinks the prosecution have not complied
with their obligation to disclose, he can apply to the court for an order requir-
ing such disclosure (s. 8(2)). The court need not make such an order if it does
not think such disclosure to be in the public interest (s. 8(5)). This decision
must however be kept under continuing review by the court (s. 15(3)).

Prosecution disclosure of sensitive material ā€“ public interest immunity (PII)
The doctrine of public interest immunity (PII) enables the prosecution to with-
hold disclosure of material where, in the courtsā€™ view, the publicā€™s interest in
non-disclosure outweighs the defendantā€™s interest in having access to the mate-
rial. In a series of decisions it was held that the court, not the prosecution, is the
arbiter of what could be withheld from disclosure.504 The court must carry out
a balancing exercise, though where non-disclosure may lead to a miscarriage of
justice the court should always order disclosure.505 The prosecution then has a
choice between complying or dropping the case.
In 1993, in Davis, Johnson and Rowe506 the Court of Appeal set out three
diļ¬€erent procedures for dealing with PII claims. In Type 1, the defence is
informed of the application and of the type of material involved and can address
the court on the matter. In Type 2, the application is heard ex parte but the
defendant is informed that the application is to be made without notice as to
the type of material in issue. In Type 3, the defence is not even notiļ¬ed of the
fact of the application.507 The CPIA in eļ¬€ect codiļ¬ed the common law.508
The Runciman Royal Commision said it believed ā€˜that the procedure laid
down in Davis, Johnson and Rowe for the disclosure of material that may attract
public interest immunity strikes a satisfactory balance between the public inter-
est in protecting such material and the legitimate need of the defence in some
cases to see it or to be aware of its existenceā€™.509

503
(1999) 2 Cr App Rep 304, [1999] 2 All ER 737.
504
Ward (1993) 96 Cr App Rep 1, CA; Davis, Johnson and Rowe (1993) 97 Cr App Rep 110, CA;
505
Keane (1994) 99 Cr App Rep 1, CA. Keane (1994) 99 Cr App Rep 1, CA.
506
[1993] 2 All ER 643.
507
Type 3 applications are very rare ā€“ some twenty a year. (Inspectorateā€™s Thematic Review,
n. 484 above at para. 6.43.)
508
See the Crown Court (Criminal Procedure and Investigations Act 1996) (Disclosure) Rules
1997, SI 1997/698, reproducing the procedure laid down in Davis, Rowe and Johnson.
509
Runciman, Ch. 6, para. 47, p. 95.
298 Pre-trial criminal proceedings


The Strasbourg Court in Rowe and Davis v. United Kingdom510 agreed that in
exceptional circumstances evidence could be withheld from the defence but
found that on the facts there had been a breach of the ECHR. The general rule
that the prosecution should reveal all its evidence to the defence might in some
circumstances have to give way to other competing considerations such as
national security, protection of witnesses and preserving secrecy of police inves-
tigations (para. 61). However, Article 6(1) of the Convention only permitted
exceptions that were strictly necessary. The procedure followed at the appli-
cantsā€™ trial in a Type 2 PII application whereby the prosecuting authorities
decided to withhold material evidence without informing the trial judge did not
meet this standard and the Court of Appeal, which had itself considered the
material, was not able to remedy the position as it had not seen the witnesses
give their evidence and had to rely on transcripts.
By contrast, in Jasper v. United Kingdom511 given by the same court on the
same day, the Strasbourg Court held there was no breach of the ECHR as the
PII application had been made in proper form to the trial judge. The defence
had had an opportunity of making submissions to the court even though it was
not informed as to the category of material being sought.512
Lord Justice Auldā€™s Report said that there was ā€˜widespread concern in the
legal professions about lack of representation of the defendantā€™s interest [in
such hearings] and anecdotal and reported instances of resultant unfairness to
the defenceā€™.513 He proposed the introduction of a scheme for instruction in
such cases by the court of special independent counsel to represent the interests
of the defendant both at trial and on appeal. Special advocates for this situation
are now part of the system. He is made privy to the conļ¬dential material and
can argue on behalf of the defendant though he is not allowed to reveal the
content either to the defendant or to his lawyers. The system was approved by
the Strasbourg Court in Edwards and Lewis v. UK in July 2003514 and in February
2004 by the House of Lords in R v. H and C (above). The concept had been used
for the Special Immigration Appeals Tribunal and in terrorism cases and both
the Strasbourg Court and the House of Lords said there were exceptional PII
cases in which, despite its problematic nature, it could be helpful. (The Court
of Appeal in R v. H and C said that in Type 3 hearings a special independent
counsel should always be appointed.515)
In July 2003, Sir David Calvert-Smith QC, the then Director of Public
Prosecutions, announced new Joint Operational Instructions on prosecution

510
(2000) 30 EHRR 1, [2000] Crim LR 584 and commentary at 585.
511
(2000) 30 EHRR 1, [2000] Crim LR 586.
512
See also to the same eļ¬€ect Fitt v. United Kingdom (2000) 30 EHRR 1 and 441, [2000] Crim LR
513
586. Auld, Ch. 10, para. 193, p. 477.
514
(2003) 15 BHRC 189. Endorsed without argument by the Grand Chamber on 27 October
2004.
515
For discussion of the position of the lawyer acting as special advocate see A. Boon and S.
Nash, ā€˜Special Advocacy: Political Expediency and Legal Roles in Modern Judicial Systemsā€™,
Legal Ethics, vol. 9, Pt 1, 2006, p. 101.
299 Information supplied to the opponent (ā€˜disclosureā€™)


disclosure including new rules on public interest immunity applications. A PII
application should only be made if disclosure would cause real harm to a
genuine public interest.516 The Joint Operational Instructions were replaced by
the CPSā€™ Disclosure Manual.517 (See also the Criminal Procedure Rules 2005,
Part 25.) The Manual states that if the disclosure rule is applied in the robust
manner endorsed by the House of Lords in R v. H and C (above), applications
to the court for PII certiļ¬cates should be rare. There should only be derogations
from the golden rule in exceptional circumstances.518


Scientific evidence
The Runciman Royal Commission emphasised the crucial importance of pros-
ecution disclosure to the defence where exhibits are sent to a laboratory for sci-
entiļ¬c analysis. Sir John Mayā€™s inquiry into the case of the Maguires519 and the
Court of Appealā€™s judgment in the Judith Ward case520 had demonstrated the
serious risk of a miscarriage of justice if there were not full disclosure of scien-
tiļ¬c evidence to the defence. ā€˜Forensic scientists are therefore under a categori-
cal obligation to disclose to the police, and the police to pass on to the CPS, all
the scientiļ¬c evidence that may be relevant to the caseā€™.521 This duty of disclo-
sure, it said, extended to anything that might help the defence:
Following disclosure, the defence are entitled to access to notebooks and test
results and to information about similar evidence discovered in other or related
cases, especially where this tends to undermine the identiļ¬cation of the defen-
dant as the oļ¬€ender. We interpret the Court of Appeal judgment in Ward as
meaning that, if expert witnesses are aware of experiments or tests, even if they
have not carried them out personally, which tend to disprove or cast doubt upon
the opinions that they are expressing, they are under an obligation to bring the
records of them to the attention of the police and prosecution.
The Royal Commission said that it had ā€˜no hesitation in endorsing the main
thrust of the Court of Appealā€™s judgment in Ward as regards the disclosure of
scientiļ¬c evidenceā€™ and it was pleased to be able to say ā€˜that this is also accepted
by the public sector laboratories concernedā€™.522 If the defence thought there
might be material at the laboratory which threw doubt on the prosecutionā€™s test
results, ā€˜they should in our view be entitled to have access to the original notes
of the experiment in order to test that belief ā€™. It continued: ā€˜we believe that this
is in fact the position, since we have been told by defence experts that they now
have full access to everyone and everything relevant to the case in questionā€™.523

516
ā€˜Getting it Right ā€“ Prosecution Disclosure of Unused Materialā€™, 153 New Law Journal, 4 July
2003, p. 1020.
517
www.cps.gov.uk ā€“ Legal Guidance ā€“ Disclosure and Covert Law Enforcement.
518
CPS, Disclosure Manual, Ch. 13, para. 2.
519
Interim Report on the Guildford and Woolwich Pub Bombing, 1990 (HC 556) and Second Report
520
on the Maguire Case, 1992 (HC 296). [1993] 2 All ER 577.
521 522 523
Runciman, p. 154, para. 45. Ibid., p. 154, para. 47. Ibid, para. 48.
300 Pre-trial criminal proceedings


The Royal Commission recommended that when exhibits were taken for
analysis by the prosecution, regard should be had to the potential desire of the
defence in due course to carry out their own tests on the material. Where prac-
ticable, suļ¬ƒcient material should be collected for the purpose and, so far as
practicable, the scene of the crime should remain undisturbed. After a suspect
had been charged the defence should have an enforceable right to observe any
further scientiļ¬c tests carried out or the right to remove some of the material
for their own analysis.524

Defence access to scientific or forensic testing
In 1987, a JUSTICE Committee said that although the police theoretically
made their forensic science laboratory facilities available to the defence, ā€˜in
practice little or no use can be made of themā€™. The police would not permit
re-examination of an exhibit already examined by one of their own scientists.
They would allow their own scientists to conduct tests for the defence or a
defence scientist to use their laboratories, but they insisted that their own sci-
entists had to be present, which meant that the prosecution were fully apprised
of the experiments and the results. This was ā€˜wholly unacceptableā€™ and ā€˜an
erosion of the principle that it is for the prosecution to establish their caseā€™.525
Generally the defence did not take advantage of the possibility of using police
facilities. Indeed if they did, and if evidence favourable to the prosecution
emerged, it would be a gross breach of duty by the defence solicitor to the client.
In April 1991, the Forensic Science Service became an Executive Agency of
the Home Oļ¬ƒce as part of the Conservative Governmentā€™s policy for making
public bodies somewhat independent and ļ¬nancially accountable. It started to
charge the police and others using its services. (Previously even the defence
experts had the use of the facilities free of charge.) The Framework Document
provided that the Agency was free to take on work for the defence, but it seems
that was developing slowly.526
The problem of provision of adequate scientiļ¬c facilities for the defence was
speciļ¬cally included in the terms of reference of the Runciman Royal
Commission. The Commission said that the public sector forensic science lab-
oratories were prepared to work for the defence for its normal charges ā€“ pro-
vided the same laboratory was not already working on the case for the
prosecution. The exception was the Metropolitan Police Forensic Science
Laboratory, and it intended to change this policy, but it was rare that the defence
were dissatisļ¬ed with tests carried out for the prosecution. It was more likely to
be a matter of interpretation of the results. Defence scientists were allowed to
use the public sector facilities.527


524 525
Runciman, p. 155, para. 52. JUSTICE, A Public Defender, 1987, para. 30.
526
See R. Stockdale, ā€˜Running with the Houndsā€™, New Law Journal, 7 June 1991, p. 772 raising
the question of how to provide adequate forensic scientiļ¬c services to the defence.
527
Runciman, p. 146, para. 11.
301 Information supplied to the opponent (ā€˜disclosureā€™)


The Royal Commission proposed that ā€˜all the public sector laboratories
should look upon themselves as equally available to the defence and the prose-
cution and we would expect to see considerable development of the provision
of services to the defence as time goes byā€™.528
The Royal Commission thought that the defence should have complete
freedom to choose between public sector and private sector forensic scien-
tists.529 It did not think that public funds should be devoted to establishing sep-
arate facilities for the defence.


Other issues of prosecution disclosure
Where a prosecution witness is of known bad character, the prosecution is
under a duty to inform the defence of the fact.530 In Paraskeva531 the Court of
Appeal quashed a conviction because the prosecution had failed to comply with
this duty. The complainant in a charge of robbery and assault had had a con-
viction for theft. The Appeal Court said that the defence should have been told,
since either the prosecution or the defence were lying and the jury should have
had this information in making up their minds which it was. Details of the pre-
vious convictions of the accused himself must be supplied by the prosecution
to the defence.532
See also Edwards 533 where the Court of Appeal quashed convictions because
disciplinary ļ¬ndings against police witnesses had not been made known to the
defence or the court. The court held that the defence were entitled to cross-
examine police oļ¬ƒcers not only about disciplinary ļ¬ndings but also about any
earlier trial in which their evidence had been rejected by the jury in circum-
stances suggesting that they were not believed. The Runciman Royal Com-
mission thought this went too far. It recommended that the prosecution should
only be required to disclose disciplinary ļ¬ndings against police witnesses in so
far as those records were relevant to an allegation by the defence about the
conduct of the witness in the present case. The Commission thought that the
prosecution should also not be required to disclose cases in which there has
been an acquittal following evidence given by an oļ¬ƒcer where it would seem
that his evidence must have been disbelieved by the jury. Since research in the
jury room was not permitted there was no way of knowing why the jury had
rejected particular evidence.534
The prosecution must disclose to the defence copies of any statement or
report made by any prison doctor as to the mental capacity of the defendant.
Also, the results of any examination carried out by the Home Oļ¬ƒce Forensic
Science Laboratory should be handed over to the defence, but generally the


528 529
Runciman, p. 149, para. 24. Runciman, p. 156, para. 55.
530 531
R v. Collister and Warhurst (1955) 39 Cr App Rep 100. [1983] Crim LR 186.
532 533
Practice Direction [1966] 1 WLR 1184. (1991) 93 Cr App Rep 48.
534
Runciman, p. 97, para. 56.
302 Pre-trial criminal proceedings


prosecution are not under an obligation to disclose material that goes solely to
the credibility of defence witnesses.535


Disclosure by the defence
The common law position
Traditionally it was a fundamental principle of the common law that the defen-
dant had a right of silence in the police station and that this extended also to the
preparatory stages before the trial and to the trial itself. Subject to a small
number of recognised exceptions, the defence was not under any obligation to
give advance notice of its case, but this has now changed.

Alibi exception
The ļ¬rst exception was created in 1967 by the Criminal Justice Act of that year,
s. 11 of which laid down that an alibi defence must be notiļ¬ed to the police in
advance of the trial, so that it could be checked.

Philips Royal Commission
The Philips Royal Commission on Criminal Procedure considered whether the
alibi exception should be extended to other forms of evidence. It did not think
that the defence should generally be required to disclose its case. It thought
there was an ā€˜objection of principleā€™ to any formal requirement of general dis-
closure by the defence because the burden of proof was upon the prosecution
(para. 8.20). It considered that it would be impossible to devise eļ¬€ective sanc-
tions against a defendant who failed to comply with the requirement, since it
seemed unlikely that in practice courts would be prepared to prevent a defen-
dant from introducing evidence that demonstrated his innocence. (The experi-
ence with the alibi defence rule is that courts are normally lax about insisting
on compliance by the defence. The sanction is the comment permitted to pros-
ecution and judge on failure to comply.)
The Commission cited research evidence that even police oļ¬ƒcers thought
that new facts introduced at the trial resulted in unjustiļ¬ed acquittals only in
about 1 per cent of cases (para. 8.21), but it thought that special defences should
be notiļ¬ed to the prosecution in advance. The obvious examples, it suggested,
were defences depending on medical or forensic evidence on which the prose-
cution would wish to consider calling expert testimony.

Expert evidence exception
Section 81 of PACE granted power to make Crown Court rules to require any
party to proceedings before the Crown Court to disclose to the other party any
expert evidence which he proposes to adduce in the case. In 1987, the new rules

535
R v. Brown (Winston) [1997] 3 All ER 769, HL. For a report of the case, comparison with R v.
Rasheed (1994) 158 JP 941 and comment see also New Law Journal, 8 July 1994, p. 939.
303 Information supplied to the opponent (ā€˜disclosureā€™)


provided for the disclosure, as soon as practicable after committal, of a state-
ment in writing of any ļ¬nding or opinion of an expert upon which a party
intended to rely.536 The requirement to give advance notice of expert evidence
to the prosecution was extended to magistratesā€™ courts in 1997.537
Failure can be penalised by the court refusing permission to adduce the
expert evidence, but, like alibi notices, it has not been strictly enforced by the
courts.

Roskill Committee
The problem of disclosure by the defence was also considered by the Roskill
Committee in its report on Fraud Trials (1986).
Unlike Philips, it concluded, subject to one dissent, that the defence should
be required to outline its case in writing at the preparatory stage. Failure to do
so should be capable of attracting adverse comment from the prosecution and
the judge and the jury could be invited to draw adverse inferences (para. 6.82).
It considered, but ultimately rejected, the case for advance disclosure by
the defence of the names of its witnesses and for advance notiļ¬cation to the
prosecution as to whether the defendant himself intended to give evidence
(paras. 6.83ā€“4).
Roskill implemented The Government accepted the majorityā€™s recommenda-
tion. The Criminal Justice Act 1987 provided that in serious fraud cases notices
could be given under s. 2 requiring persons to give information and to produce
documents. This power has been used extensively.
The judge can order the prosecution to ā€˜prepare and serve any documents
that appear to him to be relevantā€™ and having made such an order and the pros-
ecution having complied with it, the judge can then make an equivalent order
for the defence to provide relevant documents (s. 7(3)). Under this provision,
the defence can be required to give the court and the prosecution: (1) a state-
ment in writing setting out in general terms the nature of his defence and indi-
cating the principal matters on which he takes issue with the prosecution; (2)
notice of any objections he has to the prosecutionā€™s case statement; (3) notice of
any points of law he intends to take, including any on the admissibility of
evidence and (4) notice of the extent to which he agrees with the prosecution
as regards documents and other matters and the reason for any disagreements
(s. 9(5)).
Section 10 provides that, in the event of any departure from the case disclosed
at the preparatory hearing or any failure to comply with the obligation to make
advance disclosure, the judge and, with the judgeā€™s leave, the other party may
make such comment as he thinks appropriate. (In deciding whether to give such
leave the judge is required to have regard to the extent of any departure and
whether there was any justiļ¬cation for it.) When making an order to the defence

536
Crown Court (Advance Notice of Expert Evidence) Rules 1987, SI 1987/716.
537
Magistratesā€™ Courts (Advance Notice of Expert Evidence) Rules 1987, SI 1987/705.
304 Pre-trial criminal proceedings


to make advance disclosure, the judge must warn the defence of the possibility
of such comment (s. 9(7)).538

Runciman Royal Commission
The Runciman Royal Commission on Criminal Justice (1993), by a majority of
ten to one, recommended that after the prosecution had produced its case, the
defendant should be asked to indicate in outline the nature of his defence:
59. With one dissentient, we believe that there are powerful reasons for extend-
ing the obligations on the defence to provide advance disclosure. If all the parties
had in advance an indication of what the defence would be, this would not only
encourage earlier and better preparation of cases but might well result in the
prosecution being dropped in the light of the defence disclosure, an earlier res-
olution through a plea of guilty, or the ļ¬xing of an earlier trial date. The length
of the trial could also be more readily estimated, leading to a better use of the
time both of the court and of those involved in the trial; and there would be kept
to a minimum those cases where the defendant withholds his or her defence
until the last possible moment in the hope of confusing the jury or evading
investigation of a fabricated defence.539
The majority thought this would not infringe the right of defendants not to
incriminate themselves ā€“ anymore than this right was infringed by the duty
to advance oneā€™s defence at trial. Moreover defendants would still be entitled to
remain silent throughout.540 It was true that ā€˜ambush defencesā€™ were relatively
rare but the existing system encouraged late preparation of cases which was
undesirable:
68. In most cases disclosure of the defence should be a matter capable of being
handled by the defendantā€™s solicitor (in the same way that alibi notices are usually
dealt with at present). Standard forms could be drawn up to cover the most
common oļ¬€ences, with the solicitor having only to tick one or more of a list of
possibilities, such as ā€˜accidentā€™, ā€˜self-defenceā€™, ā€˜consentā€™, ā€˜no dishonest intentā€™, ā€˜no
appropriationā€™, ā€˜abandoned goodsā€™, ā€˜claim of rightā€™, ā€˜mistaken identiļ¬cationā€™ and
so on. There will be complex cases which may require the assistance of counsel
in formulating the defence. Where counsel are involved, they should if practica-
ble stay with the case until the end of the trial; where this is impracticable, the
barrister who has been involved with the pre-trial work should pass on his or her
preparation to the barrister who is to present the case at trial.541
The sole dissentient was the writer:
1. The most important objection to defence disclosure is that it is contrary to
principle for the defendant to be made to respond to the prosecutionā€™s case until
it has been presented at the trial. The defendant should be required to respond

538
For a report on how the powers under the CJA 1987 were utilised see M. Levi, The
Investigation, Prosecution and Trial of Serious Fraud (Royal Commission on Criminal Justice,
539
Research Report No. 14, 1993). Runciman, p. 97, para. 59.
540 541
Ibid, para. 60, pp. 97ā€“8. Ibid, para. 68, p. 99.
305 Information supplied to the opponent (ā€˜disclosureā€™)


to the case the prosecution makes, not to the case it says it is going to make. They
are often signiļ¬cantly diļ¬€erent.
2. The fundamental issue at stake is that the burden of proof lies throughout
on the prosecution. Defence disclosure is designed to be helpful to the prosecu-
tion and, more generally, to the system, but it is not the job of the defendant to
be helpful either to the prosecution or to the system. His task, if he chooses to
put the prosecution to the proof, is simply to defend himself. Rules requiring
advance disclosure of alibis and expert evidence are reasonable exceptions to
this general principle, but, in my view, it is wrong to require the defendant to be
helpful by giving advance notice of his defence and to penalise him by adverse
comment if he fails to do so . . .
There were also practical grounds of objection:
9. Moreover, a general requirement of defence disclosure would involve signiļ¬-
cant extra delays, costs and ineļ¬ƒciencies. The lay client would have to be seen
to take his instructions. Getting the lay client to come into the solicitorā€™s oļ¬ƒce
or going to see him in prison is often troublesome. Counsel would quite fre-
quently be involved both to advise and often actually to settle the defence dis-
closure. It could hardly be expected that defence lawyers would go out of their
way to be helpful to the prosecution. The prosecution would therefore often ļ¬nd
it right to ask for ā€˜further and better particularsā€™, with resulting further delays
and costs. These extra costs would apply not only to cases that ended as trials
but also to those that ended as last minute guilty pleas (ā€˜cracked trialsā€™).
10. The present much criticised lack of continuity in counselā€™s involvement in
the case would pose even greater problems than in relation to ordinary pre-trial
matters. From the defendantā€™s point of view, the last minute appearance of a
barrister he has never seen before would be even more upsetting in a regime
where pre-trial defence disclosure was a requirement. It is bad enough that the
client should so often be faced on the day of the trial with a new barrister. It
would be worse if he knew that the new barristerā€™s ability to represent him was
restricted by decisions regarding defence disclosure made by another barrister
at an earlier stage whether on paper or at a pre-trial hearing . . .
12. In summary, I am against defence disclosure because it is wrong in prin-
ciple, and because it would cause extra delay, cost and general ineļ¬ƒciency in the
system, to little, if any, purpose.542
Runciman implemented The Government accepted the majority view. The
Criminal Procedure and Investigations Act 1996 (CPIA) provided for a new
regime of compulsory disclosure by the accused in response to primary disclo-
sure by the prosecution. Section 5 said that the accused must give a defence
statement to the prosecutor:
(6) For the purposes of this section a defence statement543 is a written statement ā€“
(a) setting out in general terms the nature of the accusedā€™s defence,

542
Runciman Dissent at pp. 221ā€“3.
543
On the question what use, if any, the prosecution can make of the defence statement see
J. Sprack, ā€˜Will Defence Disclosure Snap the Golden Thread?ā€™, International Journal of Evidence
306 Pre-trial criminal proceedings


(b) indicating the matters on which he takes issue with the prosecution,
and
(c) setting out, in the case of each such matter, the reason why he takes
issue with the prosecution.
In the case of an alibi, the particulars to be provided included the name and
address of any such witness, failing which, information as to how to ļ¬nd him
(s. 5(7)).
The regulations impose a tight time limit for defence disclosure. The defence
statement must be served within fourteen days of the prosecutionā€™s service of
prosecution material or statement that there is none. The defence can apply for
an extension of time.
If the defendant fails to comply with the obligation to give a defence state-
ment or does so late, or sets out inconsistent defences, or at his trial puts forward
a defence inconsistent with what appeared in the defence statement, or advances
an alibi of which he has not given advance notice, the judge and, with leave of
the court, the prosecution ā€˜may make such comment as appears appropriateā€™
(s. 11(3)(a)). Also ā€˜the court or jury may draw such inferences as appear proper
in deciding whether the accused is guiltyā€™ (s. 11(3)(b)).
The requirement to produce a defence statement only applies to cases in the
Crown Court. In cases being tried summarily, the defence have the option of
giving a defence statement but need not do so (CPIA, s. 6(2)).544

The special case of expert evidence
The Runciman Royal Commission unanimously recommended that if the
defence proposed to contest the prosecutionā€™s scientiļ¬c or other expert evidence
they should give advance notice of the grounds on which they disputed that evi-
dence ā€“ whether or not they intended to call expert testimony of their own.545
The Crown Court Study done for the Royal Commission showed that the
defence called an expert in only one-third of the cases in which they contested
the prosecutionā€™s scientiļ¬c evidence. In two-thirds of cases, the challenge was
purely in the form of cross-examination,546 but it is very common in that situ-
ation for the defence to be advised by an expert even though he is not called at
the trial. The rules only require advance disclosure of evidence one intends to
adduce at the trial. The defendant does not have to give notice of tests done
which support the prosecution theory of the case.

Footnote 543 (cont.)
and Proof, 1998, vol. 2, no. 4, pp. 224ā€“31; S. Thompson, ā€˜Defence Statements ā€“ Weighting the
Scales or Tipping the Balance on a Submission of No Case?ā€™, Criminal Law Review, 1998,
pp. 802ā€“7; C. Parry and M.I. Tregilgas-Davey, ā€˜Prosecution Use of Defence Statementsā€™,
Solicitorsā€™ Journal, 28 May 1999, p. 520.
544
For the argument that this is an anomaly that should be remedied see V. Smith, ā€˜Defence by
Ambushā€™, 168 Justice of the Peace, 17 January 2004, pp. 24ā€“31.
545
Runciman, p. 157, para. 60.
546
M. Zander and P. Henderson, Crown Court Study (Royal Commission on Criminal Justice,
Research Study No. 19, 1993) section 3.2.6.
307 Information supplied to the opponent (ā€˜disclosureā€™)


Auld on defence disclosure
In Lord Justice Auldā€™s view, defence disclosure was not working as intended:
Many defence statements do not comply with the requirements of the 1996 Act.
They do not set out in general terms the nature of the defence or the matters on
which issue is taken with the prosecution case and why. Often defence state-
ments amount to little more than a denial, accompanying a list of material that
the defence wish to see and without explanation for its potential relevance to any
issues in the trial. Most judges, Crown Prosecution Service representatives or
practitioners who have commented on the matter in the Review and to the
Plotnikoļ¬€ and Woolfson Study547 have said that the statements, in the form in
which they are generally furnished, do little to narrow the issues at, or otherwise
assist, preparation for trial.548
The fourteen-day time limit for ļ¬ling the defence statement was tight and some-
times insuļ¬ƒcient. Prosecution primary disclosure might be defective or late,
defendants for all sorts of reasons might not give their solicitors instructions or
do so in time, the solicitors might misunderstand the instructions, or neither
might focus suļ¬ƒciently on the issues. Judges were likely to be very cautious in
permitting the jury to draw adverse inferences from a failure to comply with the
requirements.549
Auld said that he had considered whether to recommend that the defence be
under an obligation to identify defence witnesses and the content of their
expected evidence but had concluded against it. Many would ļ¬nd it objection-
able as going beyond deļ¬nition of the issues and requiring the defendant to set
out an aļ¬ƒrmative case.550 There were too many instances when the prosecution
amended the charges late in the day or failed to provide adequate or timely
primary disclosure. There could be no question of punishing a defendant by
barring an unannounced defence and only rarely of allowing adverse inferences.
Often it would be diļ¬ƒcult to establish whether the fault for non-compliance lay
with the lawyer or the defendant. Financial penalties, whether on the lawyer or
the defendant, were equally unworkable.551
Although Auld did not recommend changes in the requirements for defence
statements, he did propose a variety of ways for making them more eļ¬€ective:552
to have full and timely prosecution disclosure, to pay defence lawyers a proper
and discrete fee for preparatory work, to make defendants in custody more
accessible to their lawyers (including provision of video conferencing facilities)
and for prosecution lawyers to request particulars of inadequate defence state-
ments, seeking court directions if necessary.

547
J. Plotnikoļ¬€ and R. Woolfson, A Fair Balance? Evaluation of the Operation of Disclosure Law
(Home Oļ¬ƒce, 2002) p. 13. For further details of the research ļ¬ndings see the writerā€™s
response to Lord Justice Auldā€™s report ā€“ www.dca.gov.uk ā€“ Publications ā€“ Reports and
Reviews ā€“ Comments received ā€“ Academics ā€“ at pp. 50ā€“1.
548 549
Auld, Ch. 10, para. 158, p. 461. Ibid, para. 159, p. 461.
550 551
Ibid, para. 180, p. 470. Ibid, paras. 180ā€“3.
552
Ibid, para. 183. pp. 471ā€“2.
308 Pre-trial criminal proceedings


Auld also recommended that there should be professional conduct rules,
training, guidance and in the rare cases where it was appropriate, discipline ā€˜to
inculcate in criminal defence practitioners and through them their clients, the
principle that a defendantā€™s right of silence is not a right to conceal in advance
of trial the issues he is going to take. Its purpose is to protect the innocent from
wrongly incriminating themselves, not to enable the guilty, by fouling up the
criminal process, to make it as procedurally diļ¬ƒcult as possible for the prosecu-
tion to prove their guilt regardless of cost and disruption to others involvedā€™.553

Criminal Justice Act 2003
In 2002, the Government in its White Paper Justice for All 554 indicated its inten-
tion to make important changes with regard to defence disclosure ā€“ most of
which were implemented in the Criminal Justice Act 2003 (CJA 2003):
ā€¢ Widening the matters on which an adverse inference could be drawn to
include signiļ¬cant omissions that the defendant could reasonably have been
expected to have mentioned in the defence statement. This was included in
the CJA 2003.555
ā€¢ Removing the requirement for permission from the judge before comment-
ing on discrepancies between the defence statement and the defence at trial.
This was included in the CJA 2003.556
ā€¢ Incentives and strengthened sanctions aimed at getting prosecution counsel
to play a more active role in advising on and challenging the adequacy of
defence statements.
ā€¢ Giving the prosecution a right to apply for an early judicial hearing to enable
the prosecution to challenge unreasonable defence requests for prosecution
documents.
ā€¢ Enhancing the requirements of the defence statement. This was included in
the CJA 2003 (see below).
ā€¢ Requiring the judge to alert the defence to inadequacies in the defence state-
ment from which adverse inferences may be drawn. This was included in the
CJA 2003 and extended to other failings of defence disclosure.557
ā€¢ Requiring the defence to provide details of any unused expert witness reports.
This was not implemented as to the actual reports, but the CJA 2003 does
requires the defence to give the name and address of any expert consulted
whether or not it is intended to call him.558

553 554
Ibid, para. 183, p. 472. Cm. 5563, July 2002.
555
New CPIA, s. 11(2)(e) and (f) inserted by s. 39 of the CJA 2003.
556
Under the CPIA 1996, s. 11(3) adverse comment on ā€˜faults in disclosure by the accusedā€™ could
be made only with the leave of the court. By contrast, the equivalent provision replacing s. 11
inserted by the CPIA, s. 39 requires the leave of the court only where the ā€˜faultā€™ was not giving
advance notice of a point of law raised at the trial, giving a witness notice late or calling a
witness who was not named in the witness notice.
557
New CPIA, s. 6E(2) inserted by s. 36 of the CJA 2003.
558
New CPIA, s. 6D inserted by s. 35 of the CJA 2003.
309 Information supplied to the opponent (ā€˜disclosureā€™)


In the debate on the measure in the Commons, the Home Oļ¬ƒce Minister
said that the purpose was to ā€˜enable the prosecution to approach and consult
expert witnesses with a view to obtaining evidence to support the prosecution
caseā€™.559 Could the prosecution call a defence expert as a prosecution witness?
The minister said: ā€˜it would be open to them to do so . . . Of course the legal
professional privilege rule would prevent the expert from being questioned
about any work done for the defenceā€™.560 The House of Commons Home
Aļ¬€airs Committee in its report on the Bill said that while it accepted the need
for the provision it was not convinced that it would work. The Home
Secretary, giving evidence to the Committee, had admitted, ā€˜there would be
little or no sanction in practice . . . In terms of the actual trial, if [defence
solicitors] had deliberately or negligently failed to identify the names of all
experts and the trial has taken place then there is not much that can be done
about thatā€™.561
ā€¢ Requiring details of defence witnesses. Implemented by a provision in the
CJA 2003 that the defence serve on the court and the prosecutor a notice
giving the name, address and date of birth of any proposed defence witness
together with any information known to the accused which ā€˜might be of
material assistance in identifying or ļ¬ndingā€™ the witness. Any changes or
further information must be notiļ¬ed by an amended notice.562 The House
of Commons Home Aļ¬€airs Committee recommended that the Bill be
amended so that when the prosecution wish to interview a defence witness,
they should be required to notify the defence and oļ¬€er to interview the
witness in the presence of the defence. Also that the interview should be tape
recorded.563 The Government accepted this and dealt with it in a Code of
Practice.564 The Act provides that the code must include, in particular, guid-
ance as to: the information that must be provided to both the interviewee
and the accused regarding such an interview, the attendance of the intervie-
weeā€™s solicitor and the accusedā€™s solicitor at the interview and the attendance
of any other appropriate person having regard to the age and any disability
of the interviewee.
The CJA 2003 made other changes regarding defence disclosure by inserting
new provisions in the 1996 Act:
ā€¢ The accused is required to provide a more detailed defence statement. Thus
where previously the Act required disclosure ā€˜in general termsā€™ of the nature
of the defence, there is now an obligation to set out ā€˜the nature of the accusedā€™s
defence, including any particular defences on which he intends to relyā€™ and
details of any point of law he wishes to take.565

559
HC Oļ¬ƒcial Report Standing Committee B (Criminal Justice Bill) 9 January 2003, cols. 254ā€“5.
560 561
Ibid, col. 255. HC 83, 2nd Report 2002ā€“3, paras. 77ā€“8.
562 563
New CPIA, s. 6C inserted by s. 34 of the CJA 2003. HC 83, 2002ā€“3, para. 71.
564
New CPIA, s. 21A inserted by s. 40 of the CJA 2003.
565
New CPIA, s. 6A(1) inserted by s. 33(2) of the CJA 2003.
310 Pre-trial criminal proceedings


ā€¢ The Home Secretary is given the power to prescribe in regulations further
details that have to be contained in defence statements.566 In the Committee
stage in the Commons, the Government accepted an amendment to require
that any such change would require the approval of an aļ¬ƒrmative resolution
passed by both Houses of Parliament.
ā€¢ The defence must update the defence statement, as required by regulations.567
ā€¢ Either on his own motion or on the application of any party, the judge may
direct that the jury be given a copy of the defence statement (edited to remove
any inadmissible evidence) if that would help the jury ā€˜to understand the case
or to resolve any issue in the caseā€™.568
ā€¢ Failure to comply with any of the rules regarding defence disclosure can lead
to comment by the court or ā€˜any other partyā€™ and adverse inferences being
drawn.569
For consideration of the position of defence lawyers with regard to disclosure
see E. Cape, ā€˜Rebalancing the Criminal Justice Process: Ethical Challenges for
Criminal Defence Lawyersā€™, 9 Legal Ethics, 2006, pp. 56ā€“79.

Defence disclosure in the magistratesā€™ courts
As noted above, in the magistratesā€™ court, the giving of a defence statement is not
required. It is optional (CPIA, s. 6).570 However, in the absence of a defence state-
ment, the defence cannot make a request for speciļ¬c disclosure under CPIA, s. 8
nor can the court make an order for disclosure of prosecution unused material.


The 2006 Disclosure Protocol
In February 2006, a remarkably ambitious Crown Court Disclosure Protocol571
was issued by HM Courts Service572 with a covering notice stating that it came
from the judiciary.573 Its aim was nothing less than a total transformation of the
culture with regard to disclosure of unused material.574 The Protocol was

566
New CPIA, s. 6A(4) inserted by s. 33(2) of the CJA 2003.
567
New CPIA, s. 6B inserted by s. 33(3) of the CJA 2003.
568
New CPIA, s. 6E(4) and (5) inserted by s. 36 of the CJA 2003.
569
New CPIA, s. 11(5) inserted by s. 39 of the CJA 2003.
570
For an analysis of the problem of trial by ambush in the magistratesā€™ court and a plea that this
rule be changed see V. Smith, ā€˜Defence by Ambushā€™, 168 Justice of the Peace, 17 January 2004,
pp. 24ā€“31.
571
Three months later, an equivalent Protocol was issued for magistratesā€™ courts: Protocol for the
Provision of Advance Information, Prosecution Evidence and Disclosure of Unused Material in
the Magistratesā€™ Court, May 2006 (www.judiciary.gov.uk/docs/judgments-
guidance/protocols/mags_courts_ per cent20disclosure.pdf).
572
Disclosure: A Protocol for the Control and Management of Unused Material in the Crown Court
(www.hmcourts-service.gov.uk ā€“ news).
573
The Protocol appears on the Courts Service Website under the Court of Appealā€™s logo. It
seems that the prime mover was Lord Justice Judge, President of the Queenā€™s Bench Division.
574
In an ā€˜Outline Noteā€™ issued at the same time it was stated that the Protocol had been drafted
by a team, led by two High Court judges, which included representatives from the Crown
311 Information supplied to the opponent (ā€˜disclosureā€™)


drafted in strong, uncompromising language. Its tone was severe. The message,
bluntly stated, was that everyone concerned with the problem of disclosure of
unused material must do a great deal better ā€“ and that the judges would hence-
forth enforce the rules.575
There needs to be a sea-change in the approach of both judges and the parties
to all aspects of the handling of the material which the prosecution do not
intend to use in support of their case. For too long, a wide range of serious
misunderstandings has existed, both as to the exact ambit of the unused mate-
rial to which the defence is entitled and the role to be played by the judge in
ensuring that the law is properly applied. All too frequently applications by the
parties and decisions by the judges in this area have been made based either
on misconceptions as to the true nature of the law or a general laxity of
approach (however well-intentioned). This failure properly to apply the
binding provisions as regards disclosure has proved extremely and unneces-
sarily costly and has obstructed justice. It is, therefore, essential that disclosure
obligations are properly discharged ā€“ by both the prosecution and the defence
ā€“ in all criminal proceedings and the courtā€™s careful oversight of this process
is an important safeguard against the possibility of miscarriages of justice
(para. 1).
For the statutory scheme to work properly, investigators and disclosure
oļ¬ƒcers responsible for the gathering, inspection, retention and recording of rel-
evant unused prosecution material must perform their tasks thoroughly,
scrupulously and fairly (para. 13).
It is crucial that the police (and indeed all investigative bodies) implement
appropriate training regimes and appoint competent disclosure oļ¬ƒcers, who
have suļ¬ƒcient knowledge of the issues in the case. Each item listed on the sched-
ule should contain suļ¬ƒcient detail to enable the prosecutor to decide whether
or not the material falls to be disclosed (para. 14).
The scheduling of the relevant material must be completed expeditiously
(para. 15).
Investigators, disclosure oļ¬ƒcers and prosecutors must promptly and properly
discharge their responsibilities under the Act and statutory Code, in order to
ensure that justice is not delayed, denied or frustrated (para. 16).
Extensions of time should not be given lightly or as a matter of course. If exten-
sions are sought, then an appropriately detailed explanation must be given. For
the avoidance of doubt, it is not suļ¬ƒcient merely for the CPS (or other prosecu-
tor) to say that the papers have been delivered late by the police (or other inves-
tigator); the court will need to know why they have been delivered late. Likewise,
where the accused has been dilatory in serving a defence statement (where the


Prosecution Service, the Serious Fraud Oļ¬ƒce and the Revenue and Customs Prosecutions
Oļ¬ƒce. (There was no mention of representatives of the legal profession.) The Protocol took
eļ¬€ect on 20 February 2006, the date of its issue.
575
The magistratesā€™ court Protocol had the same message. It concluded: ā€˜the public rightly
expects that the delays and failures that have been present in the past where there has been
scant adherence to sound disclosure principles will be eradicated . . . It is now the duty of
judges and magistrates actively to manage disclosure issues in every caseā€™.
312 Pre-trial criminal proceedings


prosecution has complied with the duty to make primary or initial disclosure of
unused material or has purported to do so), it is not suļ¬ƒcient for the defence to
say that insuļ¬ƒcient instructions have been taken for service of this within the
fourteen day time limit; the court will need to know why suļ¬ƒcient instructions
have not been taken and what arrangements have been made for the taking of
such instructions (para. 28).
Judges should not allow the prosecution to abdicate their statutory responsi-
bility for reviewing the unused material by the expedient of allowing the defence
to inspect (or providing the defence with copies of) everything on the schedules
of non-sensitive unused prosecution material, irrespective of whether that ma-
terial, or all of that material, satisļ¬es the relevant test for disclosure. Handing
the defence the ā€˜keys to the warehouseā€™ has been the cause of many gross abuses
in the past, resulting in huge sums being run up by the defence without any
proportionate beneļ¬t to the course of justice. These abuses must end (paras. 30
and 31).
In the past, the prosecution and the court have too often been faced with a
defence case statement that is little more than an assertion that the defendant is
not guilty. Defence statements must comply with the requisite formalities. There
must be a complete change in the culture. The defence must serve the defence
case statement by the due date. Judges should then examine the defence case
statement with care to ensure that it complies with the formalities required by
the CPIA. If no defence case statement ā€“ or no suļ¬ƒcient case statement ā€“ has
been served by the plea and case management hearing (PCMH), the judge
should make a full investigation of the reasons for this failure to comply with the
mandatory obligation of the accused under s. 5(5) of the CPIA (paras. 34, 37
and 38).
If there is no ā€“ or no suļ¬ƒcient ā€“ defence statement by the date of the PCMH
or any pre-trial hearing where the matter falls to be considered, the judge must
consider whether the defence should be warned, pursuant to s. 6E(2) of the
CPIA,576 that an adverse inference may be drawn at the trial. In the usual case
where s. 6E(2) applies and there is no justiļ¬cation for the deļ¬ciency, such a
warning should be given.
Where there are failings by either the defence or the prosecution, judges
should, in exercising appropriate oversight of disclosure, pose searching ques-
tions to the parties and, having done this and explored the reasons for default,
give clear directions to ensure that such failings are addressed and remedied well
in advance of the trial date (para. 41).


The prospects regarding disclosure
There is no doubting the energy behind this Protocol but, in the writerā€™s view,
the prospects for its success must be counted as very poor.577

576
Failure to provide a defence statement, an updated defence statement and details of intended
witnesses.
577
This section draws heavily on research on disclosure by H. Quirk of the School of Law,
Manchester University, published as ā€˜The Signiļ¬cance of Culture in Criminal Procedure
313 Information supplied to the opponent (ā€˜disclosureā€™)


The problem goes beyond a lack of resources, though resources are clearly
part of the problem since neither the police nor prosecutors have ā€“ or are ever
likely to have ā€“ the personnel necessary to do what is required of them. To
identify the material that needs to be considered for disclosure requires time
and eļ¬€ort. It requires training and it requires judgment. The Protocol states
that ā€˜investigators and disclosure oļ¬ƒcers responsible for the gathering,
inspection, retention and recording of relevant unused prosecution material
must perform their tasks thoroughly, scrupulously and fairlyā€™ and that each
item on the schedules drawn up ā€˜should contain suļ¬ƒcient detail to enable the
prosecutor to decide whether or not the material falls to be disclosedā€™ (para.
14). On the basis of her research, Hannah Quirk (n. 577) says that the pivotal
role played by the police in the disclosure regime is one for which police
oļ¬ƒcers are ill-equipped by purpose, training and occupational culture. The
responsibility ā€˜is onerous, time-consuming and unpopularā€™. Every case
requires the completion of at least ļ¬ve forms which requires judgments about
the legal signiļ¬cance of material, the consideration of multiple possible
defences and potentially complex legal argument. ā€˜Police oļ¬ƒcers are neither
qualiļ¬ed nor trained for such a roleā€™. The police oļ¬ƒcers she interviewed
appeared to have little understanding of what was required of them. It is also
relevant that the oļ¬ƒcer in charge of the case is usually a quite junior person.
(In the Crown Court Study, in 81 per cent of over a thousand cases, the oļ¬ƒcer
in charge of the case was a constable.578)
Unused material is by deļ¬nition not relevant to the prosecutionā€™s case. Some
oļ¬ƒcers were prepared to acknowledge to Quirk that they were reluctant to give
the defence potentially exculpatory evidence. ā€˜Such attitudes militate against
the police being able or willing to perform the challenging duty imposed by the
CPIA of not merely reviewing evidence objectively, but of considering it from
the perspective of the defenceā€™. The Thematic Review of the Disclosure of Unused
Material by the CPS Inspectorate (2000) found that over one-third (38.5 per
cent) of non-sensitive schedules and one-ļ¬fth (21.5 per cent) of sensitive sched-
ules were defective. A quarter of the barristers and solicitors Quirk interviewed
and one-third of the Crown Prosecutors expressed concern that important
material was omitted from the schedules.
In doing their job with regard to disclosure, prosecutors are dependent on
what they get from the police. Quirk says: ā€˜it is rare for prosecutors to examine
material that the disclosure oļ¬ƒcer has not identiļ¬ed as potentially undermin-
ingā€™ the prosecution case. ā€˜In most cases, prosecutors said they would examine


Reform: Why the Revised Disclosure Scheme cannot Workā€™, Evidence and Proof, 2006,
pp. 42ā€“59. The research was based on interviews in 1998ā€“9 with twenty-six legal
representatives, twenty-six Crown prosecutors, seventeen police oļ¬ƒcers, sixteen barristers, six
justicesā€™ clerks, ļ¬ve lay magistrates, two stipendiary magistrates and two judges. In addition
100 questionnaires were completed by police oļ¬ƒcers. (Quirk, p. 44, n. 2.)
578
M. Zander and P. Henderson, Crown Court Study (Royal Commission on Criminal Justice,
Research Study No. 19, 1993) section 7.5.1.
314 Pre-trial criminal proceedings


the schedules rather than the actual documents listed, unless something alerts
them to a potential problemā€™. Some would make basic checks. ā€˜Others prefer not
to create work for themselves . . . as to do so would make their workload
unmanageableā€™. Much of the work in the prosecutorsā€™ oļ¬ƒces is now done by
civilian workers, but even CPS lawyers do not generally have defence or Crown
Court experience to draw on.
Prosecuting counsel tended to be more ready to make disclosure to the
defence than CPS lawyers but their eļ¬€ectiveness was dependent on the often
limited amount of time they had to consider the brief. They were rarely asked
to advise formally on the disclosure of unused material. Moreover, the gradu-
ated fees scheme which covers most cases does not provide remuneration for
prosecuting or defence barristersā€™ time reading unused material.
So far as concerns defence disclosure, the hope that the more detailed defence
statements required under the CJA 2003 would be returned completed as
required (and within a strict fourteen-day time limit) seems equally unrealistic.
It is true that under the CJA 2003 both the prosecution and co-defendants now
have the right to comment on any inadaquacies without leave of the court, but
it is diļ¬ƒcult to imagine that such adverse comment ā€“ described in the Protocol
as ā€˜the ultimate sanctionā€™ ā€“ will have much impact on juries. Defence advocates
should have little diļ¬ƒculty in ļ¬nding plausible explanations for failure to
comply with the disclosure rules ā€“ laying the blame on the lawyers or others
rather than the defendant. The threat of adverse inferences is therefore unlikely
to make a noticeable dent on the problem of defence laggardness with regard to
disclosure rules.
In short, there can be little expectation that the Protocol will change the
behaviour with regard to disclosure of police oļ¬ƒcers, prosecutors, prosecuting
and defence barristers or defendants.
There must even be serious doubts as to whether the judges will be prepared
to take it on. In the past they have shown little inclination to do so. Where there
are failings by either the defence or the prosecution, the Protocol says that
judges should ā€˜pose searching questions to the parties, and having done this and
explored the reasons for default, give clear directions to ensure that such fail-
ings are addressed and remedied well in advance of the trial dateā€™.
However, ā€˜clear directionsā€™ from judges that disclosure failings should be
addressed does not mean that they will be addressed. The Governmentā€™s Fraud
Review published in July 2006 concluded that ā€˜judges have few eļ¬€ective sanc-
tions available for them to tackle non-compliance with the spirit of the new
eļ¬€ective trial management cultureā€™.579 It thought that this was an area ā€˜that
could usefully be looked at furtherā€™. It is not obvious, however, what could be
achieved by ā€˜looking furtherā€™.
The Fraud Review thought that one possible reform would be a requirement
of even fuller defence disclosure:

579
Fraud Review, p. 222, para. 9.76.
315 The allocation of cases between higher and lower criminal trial courts


The time may now be right to move towards a full ā€˜civilā€™ degree of mutual dis-
closure between prosecution and defence in fraud and other complex criminal
trials. The prosecution are now bound to provide pleadings in the form of a case
outline, lists of admissions and issues and they must select relevant unused
material to disclose. For the court, the picture can only be complete when the
defence is also obliged to provide more than an ā€˜outlineā€™ of its case.580
It also canvassed the idea that in high volume cases such as serious fraud the
prosecutionā€™s duty to provide initial disclosure of unused material might be
postponed until it had received the defence statement. Alternatively, the prose-
cution could be allowed to seek a judicial ruling that some unused material
did not have to be looked at unless the defence could persuade the judge
otherwise.581
The Fraud Review proposed that in 2008 a working group consisting of
judges, practitioners and oļ¬ƒcials should be set up to consider what, if any,
changes were needed with regard to disclosure.582


10. The allocation of cases between higher and lower criminal trial
courts

History
For hundreds of years there were three criminal courts: assize courts,
quarter sessions courts and magistratesā€™ courts. The judges began to go out
on assize to hear criminal cases from the early part of the twelfth century.
In 1361 a statute provided that justices of the peace were required to keep
the peace and to arrest and punish oļ¬€enders. The following year a further
statute required them to meet four times a year ā€“ from which the origin of
quarter sessions courts is derived. In times of crisis such as the Wars of the
Roses in the ļ¬fteenth century and the Civil War in the seventeenth century,
when it was not possible to assemble the justices at quarter sessions, they
started to sit to hear cases out of sessions without a jury. At ļ¬rst this was
done without authority, but by the end of the sixteenth century powers of
summary jurisdiction were conferred on these meetings, which came to be
called petty sessions.
Until the middle of the nineteenth century there were only two categories of
oļ¬€ence: those triable on indictment at either assizes or quarter sessions and
those triable only summarily by magistrates. From 1847 onwards, however, the
legislature also gradually gave magistrates power to deal with various categories
of indictable oļ¬€ence.
In 1847 magistratesā€™ powers of sentence were three monthsā€™ imprisonment or
a ļ¬ne of Ā£3. The modern maximum became six monthsā€™ imprisonment or a ļ¬ne

580 581
Fraud Review at pp. 209ā€“10. Ibid. at p. 220, paras. 9.67ā€“8.
582
Ibid.at p. 321, recommendation 56.
316 Pre-trial criminal proceedings


of Ā£5,000. The Criminal Justice Act 1982, Part III, established a system of
grading of penalties which had ļ¬ve scale levels. Under the Criminal Justice Act
1991, the actual ļ¬gures were altered: Level 5 up to Ā£5,000, Level 4 to Ā£2,500,
Level 3 to Ā£1,000, Level 2 to Ā£500 and Level 1 to Ā£200.

Origins of the right to trial by jury
The commonly held belief that the right of a defendant to choose jury trial
goes back to Magna Carta is mistaken. Until the middle of the nineteenth
century the normal mode of trial in criminal cases was trial on indictment
by judge and jury. Only a small number of oļ¬€ences could be dealt with in
the magistratesā€™ court. The development of the magistratesā€™ courts as the
court where most criminal cases are handled only started in the mid-nine-
teenth century. The ļ¬rst statute to give the defendant the right to choose
the mode of trial was the Administration of Criminal Justice Act 1855
which gave magistrates jurisdiction to try simple larceny cases involving
sums of under ļ¬ve shillings, but only if the defendant consented.583 In the
Summary Jurisdiction Act 1879 the defendant was given the right to claim
trial by jury for all oļ¬€ences carrying a maximum sentence of more than
three months.
Today, the right to have jury trial exists in relation to all ā€˜either-wayā€™ oļ¬€ences.
They make up the majority of all cases sent to trial in Crown Courts.


The debate over allocation 1975ā€“2002
The allocation of cases between the higher and the lower criminal court has
been actively on the political agenda for over a quarter of a century. From the
perspective of Government it has been fuelled mainly by a wish to reduce the
cost of criminal proceedings by having more cases handled by the less expen-
sive proceedings in the magistratesā€™ courts.584

James Committee (1975)
In 1975 the James Committee585 recommended the transfer of substantial
categories of work to the lower court. It proposed that there should be three
categories of case ā€“ those so serious that they should be triable only on
indictment, those that were not suļ¬ƒciently serious to justify the elaborate
procedures and expense of trial on indictment and an intermediate category


583
In 1847 an Act provided for summary trial for larceny if the defendant was under fourteen,
the justices thought this appropriate and the childā€™s parents consented.
584
In 1993 the Runciman Royal Commission on Criminal Justice stated that the Home Oļ¬ƒce
estimated that the average cost of a contested case in the Crown Court was some Ā£13,500 as
against Ā£1,500 in the magistratesā€™ court and the cost of a guilty plea case was Ā£2,500 as against
Ā£500 in the magistratesā€™ court ā€“ Runciman, p. 5, para. 18.
585
The Distribution of Criminal Business between the Crown Court and Magistratesā€™ Courts, 1975,
Cmnd. 6323.
317 The allocation of cases between higher and lower criminal trial courts


of oļ¬€ences triable either way. The defendantā€™s right to elect for trial by jury
should be retained. It was only used in about a tenth of the cases in which
it could be exercised, but it was widely regarded as important both by
defendants and by those who represented them. If the defendant opted for
trial summarily, the magistrates should, however, have the right to send the
case for trial at the higher level ā€“ having ļ¬rst heard representations from
the prosecution. Those proposals were implemented in the Criminal Law
Act 1977.
The Committee proposed, further, that certain oļ¬€ences previously triable
either summarily or on indictment should become summary-only oļ¬€ences.
This should apply, for instance, to all drink-driving oļ¬€ences and to theft of
amounts under Ā£20 or criminal damage where the value of the damage did not
exceed Ā£100. The Government accepted these recommendations and they
were included in the Bill. The Committeeā€™s recommendations for making
motoring and other oļ¬€ences triable only summarily were implemented in the
1977 Act but, in a foretaste of many battles to come, the proposals to make
small theft and small criminal damage cases triable only summarily provoked
massive opposition and the Government eventually dropped the proposal
from the Bill.
In 1980 criminal damage cases involving amounts under Ā£200 became triable
only summarily. The process of transferring cases to the summary-only cate-
gory continued. In the Criminal Justice Act 1988, criminal damage cases
became summary-only if they involved sums of under Ā£2,000 and driving while
disqualiļ¬ed, taking a motor vehicle without authority and common assault and
battery were all reduced to this category. The Ā£2,000 limit for summary-only
criminal damage cases was raised to Ā£5,000 by the Criminal Justice and Public
Order Act 1994.

1986 consultation paper
In 1986 a Home Oļ¬ƒce consultation paper again raised for consideration the
controversial question of whether small theft cases should be transferred to
the summary-only category.586 The proposal canvassed in the consultation
paper was that there should be a statutory presumption that indictable
oļ¬€ences should be tried summarily but trial on indictment would be available
ā€˜where special circumstances made the oļ¬€ence one of exceptional gravityā€™.587
It would be for the magistrates to decide this question. There might also be a
case for allowing a person with no prior conviction for dishonesty to elect for
trial on indictment for an oļ¬€ence of that character. The proposal again ran
into considerable opposition and in the end the Government decided not to
pursue it.588


586
The Distribution of Business between the Crown Court and Magistratesā€™ Courts, Home Oļ¬ƒce,
587
1986, para. 21. Ibid, para. 27.
588
See House of Lords, Hansard, 19 November 1987, col. 309.
318 Pre-trial criminal proceedings


1990 Practice Note
In 1990 Lord Taylor, the Lord Chief Justice, issued a Practice Note (oļ¬€ences
triable either way: mode of trial)589 to assist magistrates in making the mode
of trial decision. The court, it said, should never make its decision on
grounds of convenience or expedition. Also, the accusedā€™s prior record was
irrelevant. ā€˜In general, except where otherwise stated, either-way oļ¬€ences
should be tried summarily unless the court considers that the particular case
has one of the features set out in the following pages [relating to named
oļ¬€ences] and that its sentencing powers are insuļ¬ƒcientā€™. This was intended
to increase the proportion of cases dealt with summarily, but it did not have
much eļ¬€ect.

Runciman Royal Commission (1993)
The Runciman Royal Commission recommended a radical change by propos-
ing that the defendantā€™s right to demand trial by jury in either-way oļ¬€ences be
abolished. Instead, he should have a right only to ask for Crown Court trial. If
the prosecution agreed, that would be suļ¬ƒcient. If the prosecution disagreed,
the matter would be decided by the magistrates after hearing representations
from both sides. The magistratesā€™ decision should be guided by statutory
indications as to what factors should be taken into account. These should
include the gravity of the oļ¬€ence, the defendantā€™s prior record, if any, the com-
plexity of the case and the eļ¬€ect of conviction and the likely sentence on the
defendant.590
The Commission gave various reasons:
ā€¢ With regard to indictable-only and summary-only oļ¬€ences the decision as to
where the case should be tried was made by the legislature. With regard to
either-way oļ¬€ences it would be more rational that the decision be made by
the court than by the defendant.
ā€¢ Many defendants chose Crown Court trial because the acquittal rate was
higher than in the magistratesā€™ courts. The defendant should no more have
the right to choose the court that gave him a better chance of an acquittal than
to choose a lenient judge.
ā€¢ The great majority of those who asked for Crown Court trial in either-way
oļ¬€ences in fact eventually pleaded guilty.591
ā€¢ Last minute guilty pleas in the Crown Court (known as ā€˜cracked trialsā€™)
clogged up the system, caused extra costs in the preparation of cases that then

589 590
[1990] 3 All ER 979. Runciman, pp. 85ā€“9.
591
In one study, of the convicted defendants who elected for Crown Court trial, 70 per cent
pleaded guilty to all charges and another 14 per cent pleaded guilty to some charges. (C.
Hedderman and D. Moxon, Magistratesā€™ Court or Crown Court? Mode of Trial Decisions
(Home Oļ¬ƒce Research Study No. 125, 1992).) In another study, 74 per cent of those who
elected pleaded guilty to all charges. (D. Riley and J. Vennard, Triable-either-way Cases: Crown
Court or Magistratesā€™ Court? (Home Oļ¬ƒce Research Study No. 98, 1988).)
319 The allocation of cases between higher and lower criminal trial courts


were wasted, resulted in witnesses being brought needlessly to court and
added to the numbers in prison.
ā€¢ According to Home Oļ¬ƒce research:592
ā€“ half of those who elected for trial by Crown Court did so in the mistaken
belief that if convicted the sentence would be lighter. In fact, judges were
three times as likely to impose immediate custody and in like cases Crown
Court sentences were on average two and a half times as long;
ā€“ one-third of the defendants who elected Crown Court trial said they would
have preferred to have been dealt with at a magistratesā€™ court;
ā€“ in over 60 per cent of cases in which the magistrates declined jurisdiction,
the Crown Court imposed a sentence that would have been within the
power of the magistratesā€™ to impose.
ā€¢ The objection that justice in the magistratesā€™ courts was inferior to that in the
Crown Court was not a reason to preserve the defendantā€™s right to insist on
jury trial. Magistrates handled over 90 per cent of all criminal cases and
ā€˜should be trusted to handle cases fairlyā€™.
This was the most controversial of the 352 recommendations made by the
Runciman Royal Commission. Critics of the proposal included the Bar, the Law
Society and the greatly respected Lord Chief Justice, Lord Taylor.593

1995 consultation paper
In July 1995 the Government published a consultation paper Mode of Trial
which canvassed three options. One was the recommendation made by the
Runciman Royal Commission. The second was statutory reclassiļ¬cation of
either-way oļ¬€ences to summary-only. (Thus, for instance, reclassiļ¬cation to
summary-only status of thefts of under Ā£100 could divert an estimated 9,000
cases from the Crown Court each year.) The third option was a new procedural
device of requiring defendants to enter a plea before the mode of trial decision.
Home Oļ¬ƒce research had found that about two-thirds of defendants commit-
ted by magistrates reported that they were ready to plead guilty at the ļ¬rst
opportunity available to them. This suggested that, if the defendant in such
cases could enter a plea at the magistratesā€™ court, some 25,000 defendants dealt
with at the Crown Court might have been willing to plead guilty at the magis-
tratesā€™ courts and be sentenced there or have their case transferred to the Crown
Court for sentence only.

Criminal Procedure and Investigations Act 1996, s. 49(1)
The CPIA adopted a modiļ¬ed version of the plea before venue option, but
rather than the defendant being required to enter a plea before the mode

592
Hedderman and Moxon, n. 591 above.
593
His objection was principally that the Commissionā€™s recommendation would lead to ā€˜two-tierā€™
justice, i.e. jury trial for those with no record and the most reputation to lose, but magistratesā€™
trial for recidivists.
320 Pre-trial criminal proceedings


of trial decision, he is invited to indicate his plea. (On this see pp. 337ā€“40
below.)

Narey Report (1997)
Martin Narey, a senior Home Oļ¬ƒce oļ¬ƒcial, was asked to make proposals to
reduce delays.594 Narey, like Runciman, thought the defendantā€™s right to
demand jury trial should be abolished ā€“ but in his view the question should
always be decided by the court and not be open to agreement between prose-
cution and defence.

Mode of Trial Bill No. 1 (1999)
In November 1999 the Government introduced the Criminal Justice (Mode of
Trial) Bill providing that the magistrates should determine mode of trial after
hearing representations from both sides and in light of a number of considera-
tions: the nature and seriousness of the case, their powers of punishment, the
eļ¬€ect of conviction and sentence on the defendantā€™s livelihood and reputation
and any other relevant circumstances. Whether the defendant had previous
convictions could be mentioned as a factor concerning the eļ¬€ect of a conviction
on reputation. The Bill adopted Nareyā€™s view that the mode of trial issue should
always be determined by the court with no power for the parties to determine
the matter by agreement.
The Bill ran into great opposition ā€“ especially the mention of a defendantā€™s
livelihood and reputation as relevant factors which it was argued could create
ā€˜two-tier justiceā€™ with magistrates discriminating against the poor or unem-
ployed, in favour of defendants with higher economic or social status. The Bill
which started in the Lords reached the Committee stage there but, after a series
of defeats, it was withdrawn.595

Mode of Trial Bill No. 2 (2000)
In 2000 the Government tried again with its Criminal Justice (Mode of Trial)
(No. 2) Bill ā€“ this time in the House of Commons, but when it reached the Lords
it was again defeated and was again withdrawn.596
The crucial change between the No. 1 Bill and the No. 2 Bill was the
removal of all but one of the factors the court was permitted to take into
account when making the allocation decision. These were now reduced to
ā€˜the nature of the caseā€™ and ā€˜the circumstances of the oļ¬€ence (but not of the
accused)ā€™. It no longer referred to appreciation of the relevant circumstances
ā€“ such as previous convictions and reputation ā€“ mentioned in the ļ¬rst Bill.597

594
Review of Delay in the Criminal Justice System, 1997.
595
The Committee stage on 20 January 2000 resulted in a defeat for the Government by 222 to
126 on the right of election.
596
It did not get beyond its Second Reading in the Lords on 28 September 2000.
597
For an explanation of the reasoning behind the Bill by the Home Secretary see Jack Strawā€™s
article in 150 New Law Journal, 12 May 2000, p. 670. For the writerā€™s critique of the change
321 The allocation of cases between higher and lower criminal trial courts


Auld Report (2001)
Lord Justice Auld agreed with Runciman and Narey that the decision as to mode
of trial in either-way cases should be made by the court.598

July 2002, the Government gives up
No doubt wishing to avoid further political diļ¬ƒculties and defeats in the House
of Lords, the Government announced in its White Paper Justice for All that it
had decided to abandon the whole idea of removing the defendantā€™s right to
elect jury trial.
Instead, it proposed two measures to address the problem of too many cases
going to the Crown Court. However, at the time of writing, the prospects for
these two initiatives were uncertain. Both had been due to be introduced in
November 2006, but in both cases implementation was postponed with no indi-
cation as to when, or indeed whether, they would be activated.599 The ļ¬rst was
to increase the sentencing power of magistrates from six months to twelve
months600 in order to encourage magistrates to retain more cases. (In 2003ā€“4,
almost three-quarters of the either-way cases that went to the Crown Court did
so because the magistrates declined jurisdiction.) The second was drastically to
reduce the numbers of defendants being sent to the Crown Court for sentence
only by abolishing the power unless the defendant is in the category of danger-
ous oļ¬€enders.601
If and when these new provisions are activated, it is likely that they would
result in a signiļ¬cant increase in the prison population. Figures in the Auld
Report showed that 55 per cent of the 43,000 persons convicted of either-
way oļ¬€ences after being committed for trial and nearly 60 per cent of the
20,000 committed for sentence, received sentences in the Crown Court that
were within the powers of magistrates.602 If the magistrates had the power
to give terms of imprisonment of up to twelve months, many of these
would presumably receive longer sentences than they got in the Crown
Court.
For details of an empirical study indicating that magistrates do not want to
take more serious cases see S. Cammiss, ā€˜ā€œI Will in a Moment Give You the Full
Historyā€: Mode of Trial, Prosecutorial Control and Partial Accountsā€™, Criminal
Law Review, 2006, pp. 38ā€“51.



made in the No. 2 Bill see M. Zander, ā€˜Why Jack Strawā€™s Jury Reform has Lost the Plotā€™, 150
598
New Law Journal, 10 March 2000, p. 366. Auld, p. 200.
599
The postponement also aļ¬€ected the provisions in Sch. 3 of the Criminal Justice Act 2003 for
allocation of cases (40 pages long). For the advice of the Sentencing Advisory Panel to the
Sentencing Guidelines Council regarding these provisions see www.sentencing-guidelines.
gov.uk ā€“ Advice ā€“ Allocation (February 2006).
600
Criminal Justice Act 2003, ss. 154(1), 155 and 282.
601
Powers of Criminal Courts (Sentencing) Act 2000, s. 3A inserted by the Criminal Justice Act
2003, Sch. 3, para. 23. The power to commit for sentence dangerous young oļ¬€enders was
602
activated by SI 2006/1835. Auld, Appendix IV, the second table on p. 678.
322 Pre-trial criminal proceedings


11. The guilty plea
The guilty plea plays a critical role in the criminal process since the great major-
ity of defendants do plead guilty. In the Crown Court the proportion is cur-
rently around 60 per cent.603 In the magistratesā€™ courts the proportion is
higher.604 Even in categories of more serious oļ¬€ences, most plead guilty. (In
1983 in a sample of 3,000 magistratesā€™ court cases in ļ¬ve oļ¬€ence categories ā€“
shoplifting, assaulting a police oļ¬ƒcer, possession of cannabis, criminal damage
and social security fraud ā€“ as many as 83 per cent of the defendants pleaded
guilty.605)

Why do defendants plead guilty?
It seems likely that the main reason why accused persons plead guilty is that they
are guilty, they know they are guilty, they believe that the police know it and can
prove it. Frequently they have made tape recorded admissions or have actually
signed a statement admitting the facts alleged against them in the police
station.606 They cannot see any advantage in pleading not guilty whereas there
are distinct advantages in pleading guilty ā€“ these include getting the whole thing
over more quickly, sparing friends or relatives the ordeal of giving evidence and
getting a lesser sentence (p. 000 below).


The innocent who plead guilty
Unfortunately even innocent persons sometimes plead guilty.607 As was noted
above (p. 159), it is now recognised that people make false confessions out of
some form of psychological condition, but there are innocent people who

603
In both 2003 and 2004 it was 58 per cent. In 2005 it was 60 per cent ā€“ see Judicial Statistics,
Table 6.8. The rate varies from region to region. In 2005 the variance was from a high of 68
per cent in the North East to a low of 49 per cent in London.
604
The National Audit Oļ¬ƒce in February 2006 broke down the ļ¬gures as follows: 61 per cent
pleaded guilty, 15 per cent were found guilty in their absence and 5 per cent were found guilty
after a trial. In 13 per cent the CPS discontinued the case. Only 2 per cent were acquitted and
in 1 per cent of cases due to be committed to the Crown Court the magistrates discharged the
cases for lack of evidence. In 4 per cent the case could not be completed because the defendant
absconded. (Crown Prosecution Service, Eļ¬€ective use of magistratesā€™ courts hearings, National
Audit Oļ¬ƒce, February 2006, HC 798, Session 2005ā€“6, p. 10.)
605
Report of a Survey of the Grant of Legal Aid in Magistratesā€™ Courts (Lord Chancellorā€™s
Department, 1983) p. 5.
606
A study of a large sample of cases tried in the Crown Court in Birmingham and London
before tape recording in the police station showed that 88 per cent of those who made
statements confessing to the charges pleaded guilty in Birmingham and two-thirds in London.
(J. Baldwin and M. McConville, Confessions in Crown Court Trials, Royal Commission on
Criminal Procedure, Research Study No. 5, 1980, p. 14.)
607
For consideration of the ethical problems for lawyers in representing clients who claim to be
innocent but propose to plead guilty see L. Bridges, ā€˜The Ethics of Representation on Guilty
Pleasā€™, Legal Ethics, vol. 9, Pt 1, 2006, p. 80. For how the Bar Code of Conduct addresses the
problem see Bar Council, Written Standards for the Conduct of Professional Work, paras.
11.5.1ā€“11.5.3 ā€“ www.barcouncil.org.uk ā€“ Code of Conduct.
323 The guilty plea


plead guilty for a variety of other reasons. Clive Davies, a barrister, conducted
interviews with 418 men charged with burglary. Of these, eight said that
although they were not guilty they intended to plead guilty to the charges. A
further twenty-one either said that they were not guilty or said they intended
to plead not guilty, but subsequently pleaded guilty.608 Davies concentrated
his focus on the eight who said they would plead guilty from the outset. In
one case, after four hours in the police station, the defendant said he agreed
to plead guilty to breaking into a shop with intent to steal after being falsely
accused by police oļ¬ƒcers. His reasons ā€“ no one would believe him and a
guilty plea would entail loss of earnings for only two days compared with
many days over weeks or months for a not guilty plea. Another said he agreed
to plead guilty to being on enclosed premises with intent to steal a motorcy-
cle even though he did not know how to ride one. He had gone there merely
to urinate. His reasons ā€“ advice to plead guilty from his solicitor, no one
would believe him and to get it over with. (Davies persuaded him to plead
not guilty and he was acquitted.) On the basis of his study Davies calculated
that some thousands of persons each year plead guilty to charges of which
they are innocent.

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